Maitreyi Misra earned her B.B.A.LL.B. Degree from Symbiosis Law School, Pune. She holds a Masters of Law from New York University. She was an International Law and Human Rights Fellow as part of which she worked with the Association for Civil Rights in Israel. Before joining the NLUD, Maitreyi worked with Mr. Anand Grover and assisted him in his work as the United Nations Special Rapporteur on the right to health.
She has been interviewed by Taha Bin Tasneem, EBC/SCC Online Ambassador who is currently pursuing law from AMU.
Maitreyi, please tell us a bit about yourself.
Hi. Thanks, Taha for speaking with me and for engaging with the report Deathworthy. I am a lawyer and did my bachelors from Symbiosis Law School, Pune and masters from New York University. I am a founder member of Project 39-A (a criminal justice program at the National Law University Delhi) and now I head our work on mental health and criminal justice as well as death penalty mitigation. I have been working on issues of mental health (particularly within the criminal justice system) for around 8 years now.
2. Did you always know that you had to do the work you are now doing? Please tell us about your story behind this decision.
I do not think I can say that I always knew this is what I was going to do. But, what I can say is that as I was graduating from law school, I was also becoming more and more aware of a certain kind of pervasive imbalance in our society. So, after my masters, where I took a lot of courses centred around rights and society, I worked with Mr Anand Grover, who was at that time the UN Special Rapporteur on the Right to Health. Working with him got me interested in the complex field of the right to health. With Mr Grover, fortuitously, I worked on Sunder Singh case, one of the petitions which was part of the Supreme Court judgment in Shatrughan Chauhan v. Union of India on mental illness/insanity as a supervening factor for commuting the death sentence. Soon after, this amazing opportunity came by to contribute to the death penalty work that NLU Delhi was already doing through its death penalty research project (which culminated in our Death Penalty India Report, 2016). And there I started developing the research for Deathworthy. I think it is fair to say that my journey was not preordained but was a result of educational and professional opportunities and the choices that I made.
3. How would you describe your experience of working and interacting with prisoners, specifically death row prisoners? How has it shaped you and your perceptions in general?
The interviews with death row prisoners and their families were extremely revealing and very often made us confront our own prejudices and privileges. Theoretically it is much easier to construct the argument that prisoners are as human as any of us, but when you meet them, share a joke with them, realise similar games you may have played as children – those micro-moments of humanness were very startling in a nice way. Of course, the interviews also left me both frustrated and disappointed with the system. The sociologist and criminologist Nils Christie talks about how we use certain terms and words to hide behind the true nature of the activity. We make the descriptions sterile to perhaps distance ourselves from the immense pain we as a justice system cause. It never really features in our talks on fairness and justice. But you meet death row prisoners, you meet their families and you are confronted with that non-sterilised world, and any moral high ground you thought you could take, it just vanishes immediately. I think it helped me further think about the terms in which we talk about and accept our justice system, and it has really strengthened my belief in the idea that Judges and us as members of society should be made aware of the realities of the prisoners before they are punished. The multiple kinds of violence that an overwhelming majority of the prisoners were subject to right from childhood and which continues in prison points to our own complicity in perpetrating and perpetuating a whole host of injustices. More conversations are needed on how and where do we strike that balance of accountability.
4. How has your experience of an LLM from the United States been? What have your take always been?
When I went for my masters, I was unknowingly struggling with my mental illness. I was diagnosed many years after. So, I kind of struggled through those nine months. Having said that, I did get a lot of exposure to different and diverging worldviews because of the people I met and some of the courses I had taken. Because of NYU, I got the chance to work with an organisation called Association for Civil Rights in Israel for three months. And that was really good exposure because I got to witness the complexity of human rights work and the absurdity of an unjust system but also the sense of community that such work generates.
5. We know that Indian prisons are traditionally overcrowded spaces, with little attention paid to concerns about health, comfort or privacy. Without trying to belittle the excellent and inspiring work being done at Project 39-A, one would wonder that in such a scenario, advocacy for the mental health rights for prisoners is more of a first-world concern, and that there are a lot of issues for prisoners that need to be addressed before we reach that stage. What would you say to that?
I think we need to stop treating all of these concerns that you have pointed out as if they are unrelated. There are social and individual determinants of health, including mental health and that is what the report also brings out. Mental illness or the kind of severe distress we saw among death row prisoners is very much related to how they are treated in prison, what kind of violence and discrimination they go through, whether they are allowed to work or not. So, when we think of mental health of death row prisoners, it cannot be from a treatment perspective. That is important of course but it has to be seen in the context of the conditions of their existence in State custody. What is inducing such a state of affairs – that is the question that needs to be addressed. And I think it is clear from the report that the sentence of death and incarceration with the knowledge of an uncertain death itself has a lot to contribute to this condition.
6. In your opinion, what is the work that needs to be done right now at the intersection of mental health and criminal justice? Should there be more scholarship, more fieldwork; what exactly needs to be done?
Mental health and criminal justice (including in relation to prison) is quite a neglected area of work in the field of criminal law and also in the field of mental health in India.
I wonder if it is a reflection of the reality that it is a doubly marginalised population. The stigma of being a “criminal” and the stigma of mental illness coming together in an interesting way to neglect this highly vulnerable population. There is also a massive gap between what criminal law understands mental health as, and what mental health actually means, which urgently needs to bridged. We, at Project 39-A, focus on doctrinal and empirical research but I think the work to be done includes the whole gamut – more scholarship, more litigation, more fieldwork and more advocacy – from those working in the field of law and those working in the field of mental health.
7. The report mentions that the current death penalty sentencing practice is not equipped to gather and consider crucial details of a person whose is sentenced to death, and that the system does not effectively take into account intellectual disability and the various psychiatric illnesses. If this is to be changed, how shall it be done?
Resources and time – both need to be injected into the system. When we talk about sentencing, there have to be two non-negotiables. One – that fair trial rights extend to sentencing hearings as well and second that sentencing is a subsequent stage of a trial, not a secondary stage. It has to be taken with the same seriousness and rigour as the trial during the conviction phase. A majority of capital sentencing at all levels of the judiciary fails these two tests. With same day sentencing now well entrenched in capital cases, how is the rationale of the sentencing exercise to contextualise the accused and individualise the punishment be achieved at trials (or appellate judiciary)? Where is the opportunity to the accused to present the whole host of factors that courts are required to appreciate (not as checkbox factors as it does now but in their interrelatedness) for an honest sentencing exercise? And most importantly, capital defence needs to fundamentally change to acknowledge the fact that a lawyer is not going to be able to do so, because their training is not in collecting and analysing information about a person’s life. We need to formally include professionals (we refer to them as mitigation investigators) such as social workers and mental health professionals as integral to capital defence. The formal recognition becomes important because it has an implication on State provided legal aid – they would be mandated to empanel mitigation investigators for capital defence and would ensure that mitigation investigators have direct access to prisoners which is extremely crucial. A system willing to hand out the death sentence cannot then say we have little resources to ensure that the sentence is imposed fairly.
8. I am sure the kind of work that you do might take a mental toll on you. So, besides work, what do you do in order to relax? How do you keep a check on your mental health, and what keeps you going?
I read a lot – not the dense stuff. I read a lot of fantasy literature or literature which is joyful, let us say that. I sometimes colour and I have a jigsaw puzzle that I never have enough time to complete. But I think the best safeguard I have is learning to find the humour and professional and personal support environments.
9. Now that the report “Deathworthy” has finally been released by Project 39-A, is there any upcoming project that your programme is working on?
Yes, the mental health team at Project 39-A is currently preparing to release online courses on forensic mental health and criminal law. The course will be available on the learning platform, FutureLearn is meant for lawyers, judges and forensic psychiatrists. It is a first of its kind course where we have lawyers, mental health professionals and teaching the nuances of their field. There is a knowledge gap that exists that this course aims to bridge. Often, for instance, lawyers and judges do not really know how the mental health assessment might be getting done in a case of the insanity defence and hearing these aspects from experts is an extremely important aspect that gets completely missed out. Experts from Australia and the UK are also educators in this course which gives it a comparative law aspect and an insight into where Indian law could do better when it comes to accused persons with mental health concerns. The course will be available online from Feb 2022.
10. Is there any role law students can play in improving the conditions of prisoners? What advice would you give to any law student who is interested in prison reforms?
The entire work of Project 39-A’s report, Deathworthy, was accomplished because of the back-breaking work that students at NLU Delhi did. Not just students from NLU Delhi but students from other non-law universities who were being trained in psychology, psychiatry, sociology, social work – they are foundational to the report. The advice I would give is that always know that meaningful change requires an incredible amount of work, it is slow, it will always challenge your privilege, and your own conception and misconception of the world around you. Invite that. The workings and impact of the law is not accurately reflected by our laws and jurisprudence but in the experience of those affected by it. Being faced with that reality can be very very difficult, and is at the same time absolutely essential. This is the kind of learning more and more law schools should encourage.
11. Related to the previous question – would you please tell us about the kind of work done by a law student engaged as an intern under the “Mental Health and Criminal Justice” program at Project 39-A?
Yes, sure. Our work is centred on unravelling the workings of the law to understand how it works and how it impacts those whose rights it is meant to protect and ensure. Therefore, there is a lot of doctrinal and empirical research that we conduct and we involve our interns in that. Due to the pandemic, unfortunately, prison visits are not an option so the current focus is on doctrinal research and producing academic works based on that.
12. On one hand, we have traditional career paths such as litigation, judiciary, in-house counsel, law firm jobs, etc., and on the other there are organisations like Project 39-A which are engaged in various kinds of important research within the socio-legal sphere. Would you kindly put some light on this field emerging as a career option? Further, what is the general career trajectory of a person working in this field?
I think programs like Project 39-A are incredibly important as part of legal education per se. In ensuring that research centres such as Project 39-A thrive, NLU Delhi has ensured that its students are not just exposed to black letter law and that consequently, many, if not all, students carry some of those perspectives into their respective professional and personal spheres. There is a whole world that we are all too often not exposed to in law schools and that needs to change for a meaningful and mindful education in itself. As far as a career trajectory is concerned, I think research centres are a great way to generate rigorous academic works and you see it all the time in many other countries – where PhD scholars and early career professionals spend years affiliated to research centres, which act as a space for them to explore and grow. We just need to make it more mainstream in India as part of one’s journey in academia.